SEVENTH AMENDMENT dated as of July 13, 1998
(the "Amendment"), to the RIGHTS AGREEMENT
dated as of September 9, 1986, as amended as
of August 16, 1988, September 14, 1988,
January 30, 1989, February 20, 1989, October
7, 1991, March 23, 1993, and June 30, 1993
(as so amended, the "Rights Agreement"),
between POLAROID CORPORATION, a Delaware
corporation (the "Company"), and BANKBOSTON,
N.A., as successor rights agent (the "Rights
Agent").
WHEREAS, Pursuant to Section 27 of the Rights Agreement, the
Company and the Rights Agent deem it desirable to amend and supplement the
Rights Agreement as set forth herein; and
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereto hereby agree that the
Rights Agreement is amended as follows:
1. Section 1(a) of the Rights Agreement, as previously amended in the Third
Amendment dated January 30, 1989, shall be supplemented and amended to insert
the following at the conclusion of such Section:
"Notwithstanding the foregoing or anything to the contrary contained
elsewhere in this Rights Agreement, if the Board of Directors of the
Company determines in good faith that a Person who would otherwise be
an "Acquiring Person" has become such inadvertently (including, without
limitation, because (i) such Person was unaware that it beneficially
owned a percentage of Common Shares that would otherwise cause such
Person to be an "Acquiring Person" or (ii) such Person was aware of the
extent of its Beneficial Ownership of Common Shares but had no actual
knowledge of the consequences of such Beneficial Ownership under this
Rights Agreement) and without any intention of changing or influencing
control of the Company, and such Person, as promptly as practicable
divested or divests himself or itself of Beneficial Ownership of a
sufficient number of Common Shares so that such Person would no longer
be an Acquiring Person, then such Person shall not be deemed to be or
to have become an "Acquiring Person" for any purposes of this Rights
Agreement. In addition to the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of Common Shares by
the Company which, by reducing the number of Common Shares outstanding,
increases the proportionate number of Common Shares beneficially owned
by such Person to 20% or more of the Common Shares then outstanding.
Notwithstanding the immediately preceding
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sentence, (a) if a Person shall become the Beneficial Owner of 20% or
more but less than 25% or more of the Common Shares then outstanding by
reason of such share acquisitions by the Company, such Person shall be
deemed to be an "Acquiring Person" if such Person thereafter becomes
the Beneficial Owner of any additional Common Shares unless upon the
consummation of the acquisition of such additional Common Shares such
Person does not own 20% or more of the Common Shares then outstanding
and (b) a Person shall become an "Acquiring Person" as the result of an
acquisition of Common Shares by the Company which, by reducing the
number of Common Shares outstanding, increases the proportionate number
of Common Shares beneficially owned by such Person to 25% or more of
the Common Shares then outstanding unless such Person, as promptly as
practicable divested or divests himself or itself of Beneficial
Ownership of a sufficient number of Common Shares so that such Person
would no longer be the Beneficial Owner of 25% or more of the Common
Shares then outstanding, subject to the limitations regarding the
acquisition of additional Common Shares by such Person set forth in
clause (a) of this sentence. The phrase "then outstanding", when used
with reference to a Person's Beneficial Ownership of securities of the
Company, shall mean the number of such securities then issued and
outstanding together with the number of such securities not then
actually issued and outstanding which such Person would be deemed to
own beneficially hereunder."
2. The Company and BankBoston, N.A. hereby agree and confirm that BankBoston,
N.A. has been appointed the successor Rights Agent under the Rights Agreement.
Section 22 of the Rights Agreement is hereby amended to specifically provide
that the 30 day notice and notice in writing to the registered holders of the
Right Certificates provided for by Section 22 upon the substitution of Rights
Agent shall not apply to the foregoing appointment.
3. Section 2 of the Rights Agreement is hereby amended to read in its entirety
as follows:
"Appointment of Rights Agent. The Company hereby appoints the Rights
Agent to act as agent for the Company and the holders of the Rights
(who prior to the Distribution Date shall also be the holders of the
Common Shares) in accordance with the terms and conditions hereof, and
the Rights Agent hereby accepts such appointment. The Company may from
time to time appoint one or more co-Rights Agents as it may deem
necessary or desirable, upon ten (10) days' prior written notice to
the Rights Agent (the term "Rights Agent" being used herein to refer,
collectively, to the Rights Agent together with any such co-Rights
Agents); provided, however, the Rights Agent shall have no duty to
supervise, and shall in no event be liable, for the acts or omissions
of any such co-Rights Agent. In the event the
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Company appoints one or more co-Rights Agents, the respective duties
of the Rights Agent and any co-Rights Agents shall be as the Company
shall determine.
4. Section 19(a) of the Rights Agreement is hereby amended to read in its
entirety as follows:
"The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and from time
to time, on demand of the Rights Agent, its reasonable expenses and
counsel fees and other disbursements incurred in the administration
and execution of this Rights Agreement and the exercise and
performance of its duties hereunder. The Company also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any
loss, liability, or expense incurred without gross negligence, bad
faith or wilful misconduct on the part of the Rights Agent, for
anything done or omitted by the Rights Agent in connection with the
acceptance and administration of this Rights Agreement, including the
costs and expenses of defending against any claim of liability arising
therefrom, directly or indirectly.
5. Section 21(c) of the Rights Agreement is hereby amended to read in its
entirety as follows:
"The Rights Agent shall be liable hereunder only for its own gross
negligence, bad faith or wilful misconduct.
6. Section 26 is hereby amended to provide that any notice or demand authorized
by the Rights Agreement to be given or made to or on the Rights Agent shall be
addressed as follows:
BankBoston, N.A.
c/o Boston EquiServe Limited Partnership
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
ATTENTION: Client Administration
7. This Amendment shall be effective as of the date hereof. Except as expressly
set forth herein, nothing herein shall be deemed or construed to alter or amend
the Rights Agreement in any respect, and, except as amended and supplemented
hereby, the Rights Agreement shall remain in full force and effect in accordance
with the provisions thereof. Unless the context indicates otherwise, each
reference in the Rights Agreement to "this Rights Agreement" and the words
"hereof", "hereto" and words of similar import shall means the Rights Agreement,
as amended and supplemented hereby.
4. This Seventh Amendment may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
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5. This Seventh Amendment shall be deemed to be a contract made under the laws
of the State of Delaware and for all purposes shall be governed by and construed
in accordance with the laws of such state applicable to contracts to be made and
performed entirely within such state.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested, all as of the date and year first
above written.
POLAROID CORPORATION,
by /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President,
General Counsel and
Secretary
Attest:
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
BANKBOSTON, N.A.
by /s/ Xxxxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Director of Client Services
Attest:
/s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Director of Client Services
